FILED MAY 21, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35830-5-III ) (consolidated with Respondent, ) No. 35831-3-III) ) v. ) ) UNPUBLISHED OPINION JON PAUL SAUNDERS, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Jon Saunders appeals the revocation of his two
concurrent prison-based drug offender sentencing alternative (DOSA) sentences. He
argues the trial court lacked authority to revoke the DOSA sentences because his sentence
violations occurred when he was serving community custody on a third matter, not the
DOSA matters. The State responds that Mr. Saunders did not raise this argument at the
revocation hearing and has, therefore, waived it. We disagree, but remand for the trial
court to review the record and enter findings that will be dispositive of these issues. No. 35830-5-III; No. 35831-3-III State v. Saunders
FACTS
Community custody prior to DOSA sentences
Prior to beginning his DOSA sentences, Mr. Saunders was on community custody
for a March 24, 2014 conviction for possession of a controlled substance. In the
March 24 matter, the court sentenced Mr. Saunders to 30 days of jail with credit for 19
days served and 12 months of community custody.
DOSA sentences
On October 20, 2014, Mr. Saunders was sentenced to two concurrent prison-based
DOSA sentences—cause no. 14-1-00168-9 and cause no. 14-1-00183-2.1 Cause no. 14-
1-00168-9 included the crimes of second degree burglary and disorderly conduct, and
cause no. 14-1-00183-2 included the crimes of forgery and second degree escape. As
required by statute, the court ordered a prison-based DOSA sentence at the midpoint of
the standard range of 19 months’ incarceration, followed by 19 months of community
custody. The prison term was set to commence on October 20, 2014.
1 Clerk’s Papers (CP) at 188-98 (Judgment and Sentence (Felony), State v. Saunders, No. 14-1-00183-2 (Walla Walla County Super. Ct., Wash. Oct. 20, 2014)); CP at 56-57 (Ord. Amending Judgment and Sentence, State v. Saunders, No. 14-1-00168- 9 (Walla Walla County Super. Ct., Wash. Dec. 2, 2014)); CP at 103-12 (Am. Judgment and Sentence (Felony), State v. Saunders, No. 14-1-00168-9 (Walla Walla County Super. Ct., Wash. Oct. 30, 2017))
2 No. 35830-5-III; No. 35831-3-III State v. Saunders
Mr. Saunders was released from prison around September 4, 2015. Soon after his
release, Mr. Saunders committed violations of his community custody conditions. Mr.
Saunders signed a stipulated agreement of violation that he consumed methamphetamine
and alcohol on or about October 7, 2015. On December 7, 2015, Serenity Point
Counseling notified the Department of Corrections (DOC) that Mr. Saunders had failed to
engage in drug treatment services. On December 30, 2015, Mr. Saunders’s random
urinalysis color appeared, meaning he was required to provide a urine sample. He failed
to do so. Between December 30, 2015, and January 4, 2016, Mr. Saunders failed to
report to his probation officer, which was a violation of his community custody.
Absconding to Texas
Mr. Saunders thereafter absconded to Texas. Mr. Saunders acknowledged in a
letter to the court mailed February 21, 2017, that he had not had contact with his
community corrections officer since December 2015. While in Texas, Mr. Saunders
committed various crimes including theft of property, criminal trespass, and evading
arrest. The State extradited Mr. Saunders back to Washington from Texas, and Mr.
Saunders returned in or around September 2017. Accordingly, Mr. Saunders absconded
from probation from December 2015 to September 2017, a period of one year and nine
months.
3 No. 35830-5-III; No. 35831-3-III State v. Saunders
On returning to Washington, Mr. Saunders assaulted another inmate and used
methamphetamine when he was released from custody.
Mr. Saunders admits to the violations
Mr. Saunders admitted that he violated the terms of community custody by
absconding to Texas. He then stipulated to the violations as alleged in the most current
notice of violation. The court revoked his concurrent prison-based DOSA sentences. The
court ordered that he return to prison for 19 months on his concurrent sentences with
credit for time served as determined by the DOC.
Mr. Saunders appeals the revocation of his concurrent DOSA sentences.
ANALYSIS
The superior court has discretion to revoke a defendant’s DOSA sentence if
violations are found by a preponderance of the evidence. In re Pers. Restraint of McKay,
127 Wn. App. 165, 168-69, 110 P.3d 856 (2005); RCW 9.94A.660(7)(c). A trial court
abuses its discretion when its decision is “‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706,
213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d
775 (1971)).
4 No. 35830-5-III; No. 35831-3-III State v. Saunders
A. REVOCATION OF PRISON-BASED DOSA
Mr. Saunders argues the trial court lacked authority to revoke his concurrent
DOSA sentences because his sentence violations occurred when he was subject only to
his March 24, 2014 community custody conditions. On appeal, he asserts that the one-
year community custody term for the March 24 conviction was tolled while he was in
prison and while he was absconding. Citing RCW 9.94A.589(2)(a) and (b), he further
asserts that his DOSA sentencing conditions did not commence until after he completed
his community custody term for his March 24 conviction. He did not raise these
arguments to the trial court at the DOSA revocation hearing. The State argues Mr.
Saunders may not raise this argument for the first time on appeal.
Generally, we will not consider a claim of error for the first time on appeal unless
it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). Failure to raise the
error with the trial court deprives the court of the opportunity to prevent or cure the error.
State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). Mr. Saunders does not
claim that this error was a manifest error affecting a constitutional right. Instead, he
argues that erroneous or illegal sentences may be challenged for the first time on appeal.
A sentence may be challenged for the first time on appeal when the sentencing
court acts without statutory authority. State v. Paine, 69 Wn. App. 873, 884, 850 P.2d
5 No. 35830-5-III; No. 35831-3-III State v. Saunders
1369 (1993). The superior court has discretion to revoke an offender’s DOSA sentence if
violations are found by a preponderance of the evidence. McKay, 127 Wn. App. at 168-
69; RCW 9.94A.660(7)(c). “The court may order the offender to serve a term of total
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FILED MAY 21, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35830-5-III ) (consolidated with Respondent, ) No. 35831-3-III) ) v. ) ) UNPUBLISHED OPINION JON PAUL SAUNDERS, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Jon Saunders appeals the revocation of his two
concurrent prison-based drug offender sentencing alternative (DOSA) sentences. He
argues the trial court lacked authority to revoke the DOSA sentences because his sentence
violations occurred when he was serving community custody on a third matter, not the
DOSA matters. The State responds that Mr. Saunders did not raise this argument at the
revocation hearing and has, therefore, waived it. We disagree, but remand for the trial
court to review the record and enter findings that will be dispositive of these issues. No. 35830-5-III; No. 35831-3-III State v. Saunders
FACTS
Community custody prior to DOSA sentences
Prior to beginning his DOSA sentences, Mr. Saunders was on community custody
for a March 24, 2014 conviction for possession of a controlled substance. In the
March 24 matter, the court sentenced Mr. Saunders to 30 days of jail with credit for 19
days served and 12 months of community custody.
DOSA sentences
On October 20, 2014, Mr. Saunders was sentenced to two concurrent prison-based
DOSA sentences—cause no. 14-1-00168-9 and cause no. 14-1-00183-2.1 Cause no. 14-
1-00168-9 included the crimes of second degree burglary and disorderly conduct, and
cause no. 14-1-00183-2 included the crimes of forgery and second degree escape. As
required by statute, the court ordered a prison-based DOSA sentence at the midpoint of
the standard range of 19 months’ incarceration, followed by 19 months of community
custody. The prison term was set to commence on October 20, 2014.
1 Clerk’s Papers (CP) at 188-98 (Judgment and Sentence (Felony), State v. Saunders, No. 14-1-00183-2 (Walla Walla County Super. Ct., Wash. Oct. 20, 2014)); CP at 56-57 (Ord. Amending Judgment and Sentence, State v. Saunders, No. 14-1-00168- 9 (Walla Walla County Super. Ct., Wash. Dec. 2, 2014)); CP at 103-12 (Am. Judgment and Sentence (Felony), State v. Saunders, No. 14-1-00168-9 (Walla Walla County Super. Ct., Wash. Oct. 30, 2017))
2 No. 35830-5-III; No. 35831-3-III State v. Saunders
Mr. Saunders was released from prison around September 4, 2015. Soon after his
release, Mr. Saunders committed violations of his community custody conditions. Mr.
Saunders signed a stipulated agreement of violation that he consumed methamphetamine
and alcohol on or about October 7, 2015. On December 7, 2015, Serenity Point
Counseling notified the Department of Corrections (DOC) that Mr. Saunders had failed to
engage in drug treatment services. On December 30, 2015, Mr. Saunders’s random
urinalysis color appeared, meaning he was required to provide a urine sample. He failed
to do so. Between December 30, 2015, and January 4, 2016, Mr. Saunders failed to
report to his probation officer, which was a violation of his community custody.
Absconding to Texas
Mr. Saunders thereafter absconded to Texas. Mr. Saunders acknowledged in a
letter to the court mailed February 21, 2017, that he had not had contact with his
community corrections officer since December 2015. While in Texas, Mr. Saunders
committed various crimes including theft of property, criminal trespass, and evading
arrest. The State extradited Mr. Saunders back to Washington from Texas, and Mr.
Saunders returned in or around September 2017. Accordingly, Mr. Saunders absconded
from probation from December 2015 to September 2017, a period of one year and nine
months.
3 No. 35830-5-III; No. 35831-3-III State v. Saunders
On returning to Washington, Mr. Saunders assaulted another inmate and used
methamphetamine when he was released from custody.
Mr. Saunders admits to the violations
Mr. Saunders admitted that he violated the terms of community custody by
absconding to Texas. He then stipulated to the violations as alleged in the most current
notice of violation. The court revoked his concurrent prison-based DOSA sentences. The
court ordered that he return to prison for 19 months on his concurrent sentences with
credit for time served as determined by the DOC.
Mr. Saunders appeals the revocation of his concurrent DOSA sentences.
ANALYSIS
The superior court has discretion to revoke a defendant’s DOSA sentence if
violations are found by a preponderance of the evidence. In re Pers. Restraint of McKay,
127 Wn. App. 165, 168-69, 110 P.3d 856 (2005); RCW 9.94A.660(7)(c). A trial court
abuses its discretion when its decision is “‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706,
213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d
775 (1971)).
4 No. 35830-5-III; No. 35831-3-III State v. Saunders
A. REVOCATION OF PRISON-BASED DOSA
Mr. Saunders argues the trial court lacked authority to revoke his concurrent
DOSA sentences because his sentence violations occurred when he was subject only to
his March 24, 2014 community custody conditions. On appeal, he asserts that the one-
year community custody term for the March 24 conviction was tolled while he was in
prison and while he was absconding. Citing RCW 9.94A.589(2)(a) and (b), he further
asserts that his DOSA sentencing conditions did not commence until after he completed
his community custody term for his March 24 conviction. He did not raise these
arguments to the trial court at the DOSA revocation hearing. The State argues Mr.
Saunders may not raise this argument for the first time on appeal.
Generally, we will not consider a claim of error for the first time on appeal unless
it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). Failure to raise the
error with the trial court deprives the court of the opportunity to prevent or cure the error.
State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007). Mr. Saunders does not
claim that this error was a manifest error affecting a constitutional right. Instead, he
argues that erroneous or illegal sentences may be challenged for the first time on appeal.
A sentence may be challenged for the first time on appeal when the sentencing
court acts without statutory authority. State v. Paine, 69 Wn. App. 873, 884, 850 P.2d
5 No. 35830-5-III; No. 35831-3-III State v. Saunders
1369 (1993). The superior court has discretion to revoke an offender’s DOSA sentence if
violations are found by a preponderance of the evidence. McKay, 127 Wn. App. at 168-
69; RCW 9.94A.660(7)(c). “The court may order the offender to serve a term of total
confinement within the standard range of the offender’s current offense at any time
during the period of community custody if the offender violates the conditions or
requirements of the sentence or if the offender is failing to make satisfactory progress in
treatment.” RCW 9.94A.660(7)(c). If Mr. Saunders’s sentence violations occurred when
he was not subject to the conditions of his DOSA sentences, the trial court lacked
statutory authority to revoke those sentences.
Mr. Saunders argues that the record is sufficiently developed for this court to
determine whether he was under the restrictions of his DOSA sentences at the time of his
sentence violations. We disagree. We note that the parties are in substantial
disagreement about what the record shows. We, therefore, remand this matter for a new
revocation hearing so that the trial court can enter findings to support or refute Mr.
Saunders’s arguments.2
2 The record suggests that Mr. Saunders may have served his full sentence by now. If so, the parties may agree that a new DOSA revocation hearing is unnecessary.
6 No. 35830-5-III; No. 35831-3-III State v. Saunders
B. SHERIFF FEES AND COSTS OF EXTRADITION
Mr. Saunders challenges the sheriff fees ($164.10) from cause no. 14-1-00168-9
and the sheriff fees ($164.10) and extradition costs ($2,071.67) from cause no. 14-1-
00183-2. He argues that these fees are discretionary and the court failed to consider Mr.
Saunders’s present or future ability to pay as required by State v. Blazina, 182 Wn.2d 827,
834-35, 344 P.3d 680 (2015). The State argues that the DOSA revocation hearing was
not a full resentencing and did not trigger a review of the fees imposed in 2014.
In his reply brief, Mr. Saunders claims that because this is a direct appeal from the
DOSA revocation, Mr. Saunders is not precluded from challenging the discretionary fees.
The authority cited by the State that Mr. Saunders is precluded from challenging the fees,
RCW 10.73.090, relates to collateral attacks. We agree with Mr. Saunders that he may
challenge these fees on direct appeal.
We instruct the trial court to strike the sheriff fees of $164.10 for cause no.
14-1-00168-9, and the sheriff fees of $164.10 and extradition costs of $2,071.67 for cause
no. 14-1-00183-2.
7 No. 35830-5-III; No. 35831-3-III State v. Saunders
C. APPELLATE COSTS
Mr. Saunders ask this court not to award appellate costs should the State
substantially prevail. The State concedes that it will not seek appellate costs. We accept
the State’s concession and decline to award appellate costs.
D. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
Mr. Saunders filed two SAGs under RAP 10.10. The two SAGs raise the same
argument, but the first SAG contains greater detail.
Mr. Saunders claims he received DOC sanctions as a result of his various
community custody violations. He claims that these sanctions preclude the trial court
from revoking his concurrent DOSA sentences because a court cannot punish him twice
for the same criminal offenses. We disagree.
The double jeopardy clauses of the Fifth Amendment to the United States
Constitution and article I, section 9 of the Washington Constitution protect individuals
from being prosecuted twice for the same offense after acquittal. State v. Benn, 161
Wn.2d 256, 261, 165 P.3d 1232 (2007). First, Mr. Saunders was never acquitted of the
various community custody violations. Second, increased punishment for violating the
terms of an original sentence is deemed a sanction arising from the original prosecution,
not a second prosecution. State v. Prado, 86 Wn. App. 573, 577-78, 937 P.2d 636 (1997).
8 No. 35830-5-III; No. 35831-3-III State v. Saunders
Mr. Saunders also claims he never failed a urinalysis in December 2015 and
further claims he could not have assaulted another inmate at a detention facility in
Olympia, Washington, because he has never been to jail or prison there. He asks this
court to review his DOC history, which is not part of the record. Issues that involve facts
or evidence not in the record are properly raised through a personal restraint petition, not
a statement of additional grounds for review. State v. Alvarado, 164 Wn.2d 556, 569, 192
P.3d 345 (2008). Accordingly, we reject the arguments raised in Mr. Saunders's SAGs.
Remand with instructions consistent with this opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-B_errey, C .J.
WE CONCUR:
Pennell, J.